Willie Campbell & Ulysses Campbell, Sr. v. Memphis-Shelby County Airport Authority ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
April 22, 2014 Session
WILLIE CAMPBELL & ULYSSES CAMPBELL, SR. v. MEMPHIS-
SHELBY COUNTY AIRPORT AUTHORITY
Direct Appeal from the Circuit Court for Shelby County
No. CT-001981-12 Robert S. Weiss, Judge
No. W2013-01641-COA-R3-CV - Filed June 20, 2014
This case involves a plaintiff who fell outside the Memphis International Airport and sued
the Airport Authority for negligence. The trial court granted summary judgment to the
defendant Airport Authority, finding, based on the undisputed facts, that the plaintiffs and
their witnesses are unable to identify what caused the fall. Plaintiffs appeal. We affirm and
remand for further proceedings.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.
Gerald S. Green, Memphis, Tennessee, for the appellants, Willie Campbell and Ulysses
Campbell, Jr.
James Creswell, Jr., David I. Feigelson, Memphis, Tennessee, for the appellee, Memphis-
Shelby County Airport Authority
MEMORANDUM OPINION 1
I. F ACTS & P ROCEDURAL H ISTORY
Mrs. Willie Campbell was on the premises of the Memphis International Airport on
May 5, 2011, along with several members of her family, in order to view her granddaughter’s
art in an art exhibit at the airport. After parking their car, Mrs. Campbell and her family
members walked toward the entrance of the airport near Terminal B. Before Mrs. Campbell
reached the door, she fell and allegedly sustained serious injuries.
On May 3, 2012, Mrs. Campbell and her husband filed this lawsuit against the
Memphis-Shelby County Airport Authority and other defendants.2 The complaint alleged
that “as Plaintiff was walking up an incline at the curb outside of Terminal B, [she] fell
violently to the ground because of some loose pebbles or concrete, causing plaintiff to sustain
serious injuries[.]” The complaint further alleged that Mrs. Campbell “could not prevent her
fall as there were no handrails mounted and positioned at the incline.” The complaint
specifically alleged that the Airport Authority was negligent because it:
a. Failed to maintain the entryway in front of Terminal B of the Memphis
International Airport in a reasonably safe condition;
b. Allowed a crack, break and loose pebbles or concrete to remain in and
on the walkway outside of Terminal B of the Memphis International
Airport when defendant(s) knew, or in the exercise of reasonable care
should have known, that the dangerous condition created an
unreasonable risk of harm to customers and visitors to The Memphis
International Airport[;]
1
Rule 10 of the Rules of the Court of Appeals of Tennessee states:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
2
The Memphis International Airport is governed and operated by the Memphis-Shelby County
Airport Authority. The complaint also named as defendants the City of Memphis, Shelby County, and “Doe
1 and Doe 2,” but these defendants were eventually dismissed from the lawsuit upon entry of an order of
voluntary dismissal, and they are not at issue on appeal.
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c. Failed to warn plaintiff, Willie Barksdale Campbell, of the possible
danger presented by an incline with no handrails;
d. Failed to install a nonslip surface on the incline leading to the curb
outside of Terminal B; [and]
e. Failed to otherwise exercise due care with respect to the matters alleged
in this complaint.
Mrs. Campbell sought $300,000 in damages, and her husband sought $50,000 in damages
for loss of consortium. The Airport Authority filed an answer and motion to dismiss, and
discovery ensued. Depositions were taken of Mrs. Campbell, her husband, and two other
family members who were present when Mrs. Campbell fell.
On April 9, 2013, the Airport Authority filed a motion for summary judgment,
asserting that summary judgment was warranted because, among other things, neither Mrs.
Campbell nor her witnesses knew what caused Mrs. Campbell to fall. The Airport Authority
relied upon the deposition testimony of Mrs. Campbell, her husband, and the two other
family members. Plaintiffs filed a memorandum in response to the motion for summary
judgment.
On June 17, 2013, the trial court entered an order granting summary judgment to the
Airport Authority. The trial court found, based upon the undisputed material facts, that
neither Mrs. Campbell nor the witnesses she identified were able to testify as to what caused
her to fall during the subject incident. Plaintiffs timely filed a notice of appeal.3
II. I SSUES P RESENTED
Plaintiffs present the following issues for review on appeal, which we quote from their
brief:
1. Whether or not the trial court erred when it granted the Defendant’s
Motion for Summary Judgment and consequently, denied Plaintiff an
opportunity to present her case to a jury/fact finder who could
3
After the notice of appeal was filed, this Court entered an order explaining that the order appealed
was not a final judgment because, at that time, the claims against the City of Memphis, Shelby County, and
Does 1 and 2 were unresolved. We directed the appellants to either obtain entry of a final judgment or show
cause why this appeal should not be dismissed. The order of voluntary dismissal as to the remaining
defendants was entered on December 12, 2013.
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determine and assess the liability of the defendant?
2. Whether or not due process guarantees are violated when a court acts
as a fact-finder and makes a pre-trial decision that denies a Plaintiff her
day in court?
The Airport Authority argues that we should dismiss this appeal because the Plaintiffs “do
not cite to the record in any part of their brief,” as required by Tennessee Rule of Appellate
Procedure 27 and also Rule 6 of the Rules of the Court of Appeals. The Airport Authority
also argues that Plaintiffs’ due process argument should be dismissed because (1) it was not
raised in the trial court, (2) Plaintiffs failed to reproduce the challenged rule or statute in their
brief in violation of Tennessee Rule of Appellate Procedure 27(e), and (3) they failed to
notify the Attorney General of their constitutional challenge to a rule or statute pursuant to
Tennessee Rule of Civil Procedure 24.04. Alternatively, the Airport Authority argues that
the issues presented by Plaintiffs lack substantive merit. Finally, the Airport Authority
asserts that this appeal is frivolous, and it seeks an award of attorney’s fees on that basis.
For the following reasons, we affirm the decision of the circuit court and remand for
further proceedings.
III. S TANDARD OF R EVIEW
A motion for summary judgment should be granted only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “The party seeking the summary
judgment has the burden of demonstrating that no genuine disputes of material fact exist and
that it is entitled to a judgment as a matter of law.” Green v. Green, 293 S.W.3d 493, 513
(Tenn. 2009) (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008); Amos v.
Metro. Gov't of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)). “If
reasonable minds could justifiably reach different conclusions based on the evidence at hand,
then a genuine question of fact exists.” Id. at 514 (citing Martin, 271 S.W.3d at 84; Louis
Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993)). “If, on the other
hand, the evidence and the inferences reasonably drawn from the evidence would permit a
reasonable person to reach only one conclusion, then no material factual dispute exists, and
the question can be disposed of as a matter of law.” Id. (citing Godfrey v. Ruiz, 90 S.W.3d
692, 695 (Tenn. 2002); Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 91 (Tenn.
1999)).
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Because this lawsuit was filed in 2012, resolution of the motion for summary
judgment is governed by Tennessee Code Annotated section 20-16-101, which provides:
In motions for summary judgment in any civil action in Tennessee, the moving
party who does not bear the burden of proof at trial shall prevail on its motion
for summary judgment if it:
(1) Submits affirmative evidence that negates an essential element of the
nonmoving party's claim; or
(2) Demonstrates to the court that the nonmoving party's evidence is
insufficient to establish an essential element of the nonmoving party's claim.4
Summary judgments do not benefit from a presumption of correctness on appeal, so we must
make a fresh determination that the requirements of Rule 56 have been satisfied in each case.
Green, 293 S.W.3d at 514. “The reviewing courts must also consider the evidence in the
light most favorable to the non-moving party and draw all reasonable inferences in the
non-moving party's favor.” Id. (citing Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366, 373-
74 (Tenn. 2007); Abbott v. Blount County, 207 S.W.3d 732, 735 (Tenn. 2006)).
As a general rule, negligence cases are not amenable to disposition on summary
judgment; however, summary judgment “may be used to conclude any civil case, including
negligence cases, that can be and should be resolved on legal issues alone.” Fruge v. Doe,
952 S.W.2d 408, 410 (Tenn. 1997). Summary judgment is appropriate in a negligence case
if, “from all of the facts together with the inferences to be drawn from the facts, the facts and
inferences are so certain and uncontroverted that reasonable minds must agree.” Keene v.
Cracker Barrel Old Country Store, Inc., 853 S.W.2d 501, 502-03 (Tenn. Ct. App. 1992).
“Courts need not submit to the jury negligence cases containing only a spark or glimmer of
evidence that requires the fact-finder to make a leap of faith to find the defendant liable for
the plaintiff’s injury.” Psillas v. Home Depot, U.S.A., Inc., 66 S.W.3d 860, 866 (Tenn. Ct.
App. 2001).
4
“The statute is intended ‘to return the summary judgment burden-shifting analytical framework
to that which existed prior to Hannan, reinstating the ‘put up or shut up’ standard.’” Walker v. Bradley
County Gov’t, No. E2013-01053-COA-R3-CV, 2014 WL 1493193, at *3 n.3 (Tenn. Ct. App. Apr. 15, 2014)
(quoting Coleman v. S. Tenn. Oil Inc., No. M2011-01329-COA-R3-CV, 2012 WL 2628617, at *5 n. 3 (Tenn.
Ct. App. July 5, 2012)).
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IV. D ISCUSSION
A. Due Process
We will address Plaintiffs’ second issue first. It is difficult to discern the precise
nature of Plaintiffs’ due process argument, but her brief on appeal mentions property interests
and asserts that there is not “a significant government interest that would justify Plaintiff
being denied her access to the courts of this state without a meaningful hearing.” From our
review of the record, however, Plaintiffs did not raise any type of due process argument
before the trial court. Therefore, we find this issue is waived on appeal. “It is well
established that the appellate courts of this state will not entertain issues raised for the first
time on appeal.” Southern Sec. Fed. Credit Union v. Cumis Ins. Soc., Inc., No. W2004-
02700-COA-R3-CV, 2005 WL 3527662, at *7 (Tenn. Ct. App. Dec. 27, 2005) perm. app.
denied (Tenn. June 5, 2006) (citing City of Cookeville v. Humphrey, 126 S.W.3d 897, 905–06
(Tenn. 2004); Lawrence v. J.L. Stanford & Ashland Terrace Animal Hosp., 655 S.W.2d 927,
929 (Tenn. 1983); Chadwell v. Knox County, 980 S.W.2d 378, 384 (Tenn. Ct. App. 1998)).
B. Summary Judgment on the Negligence Claim
Now we will consider Plaintiffs’ challenge to the trial court’s entry of summary
judgment in favor of the Airport Authority. As noted above, the complaint in this case
alleged that Mrs. Campbell “was walking up an incline at the curb outside of Terminal B,
[when she] fell violently to the ground because of some loose pebbles or concrete[.]” The
complaint further alleged that Mrs. Campbell “could not prevent her fall as there were no
handrails mounted and positioned at the incline.” The complaint averred that the Airport
Authority was negligent because it “[a]llowed a crack, break and loose pebbles or concrete
to remain in and on the walkway,” “[f]ailed to warn [Mrs. Campbell] of the possible danger
presented by an incline with no handrails,” “[f]ailed to install a nonslip surface on the
incline,” and otherwise failed to exercise due care and maintain the entryway in a reasonably
safe condition.
In support of its motion for summary judgment, the Airport Authority submitted the
deposition testimony of Mrs. Campbell, who testified that she did see any loose pebbles or
concrete at the location where she fell, nor did she recall seeing any cracks, breaks, or gravel.
Mrs. Campbell’s husband similarly testified that he did not recall seeing any cracks, gravel,
or loose pebbles or concrete. Mr. Campbell acknowledged that photographs of the scene of
the accident do not show any pebbles or loose concrete. Mr. Campbell’s son testified that
he was walking about ten feet ahead of Mr. and Mrs. Campbell, and he did not notice any
pebbles, loose concrete, cracks, slick spots, or water on the ground. Mr. Campbell’s
granddaughter similarly testified that she was walking about five feet ahead of Mrs.
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Campbell, and she did not notice any water or slick spots or anything out of the ordinary
about the area where Mrs. Campbell fell.
In response to the allegation in the complaint that Mrs. Campbell “could not prevent
her fall as there were no handrails mounted and positioned at the incline,” the Airport
Authority again pointed to Mrs. Campbell’s own deposition testimony. When she was asked
if it was her position that there should have been handrails mounted at the location where she
fell, Mrs. Campbell responded, “No. I wouldn't need no handrails.” Likewise, Mrs.
Campbell conceded that having a nonslip surface would not have prevented her fall.
The Airport Authority pointed to various other portions of the witnesses’ depositions
in support of its assertion that neither Plaintiffs nor their witnesses knew what caused Mrs.
Campbell to fall. Mrs. Campbell described the incident as follows:
Now, it happened so quick. I was headed to, you know, to go on the
inside. And when I know anything, I had tipped over and fell, so I don't know.
I don't know whether I stepped on something or what happened.
Mrs. Campbell explained that she had crossed the roadway where people drop off their
luggage at the curb, and she fell about ten to fifteen feet from the entrance, near some large
yellow posts. Although Mrs. Campbell said she made it across the street and past the
crosswalk, she could not remember if she actually made it onto the sidewalk before she fell.
When asked to draw and describe a diagram of the area, Mrs. Campbell said, “And when I
got there, I fell. But I don’t know what happened. All I know is I fell. . . . I don’t know
whether I tripped. Seemed like I tripped over something.” Mrs. Campbell first said that “as
soon as I stepped up on the curb, I fell,” but when asked to elaborate, Mrs. Campbell said she
stepped onto the curb with her right foot, then her left foot, “[a]nd as I walked down a few
feet, that’s when I fell.” Mrs. Campbell said she “stepped up from the walk where the cars
go, . . . and I walked for a little distance.” When asked about the allegation in the complaint
that she was walking up an incline when she fell, Mrs. Campbell described the incline as
“[m]aybe one step or something like that. I’m not sure.” However, Mrs. Campbell said she
was “up on the level” surface when she fell, not on the curb, and she “wasn’t walking up no
steps or nothing.” Mrs. Campbell was specifically asked if she knows what she fell or
tripped on, and she said, “No, I don’t. It wasn’t raining that day, so I – had to be something
for me to fall.”
Mrs. Campbell testified that she had been to the airport “lots of times” and used this
particular entrance about fifteen times. Mrs. Campbell was asked to describe what was
dangerous about the condition of the airport on this particular day, and she responded, “Well,
it’s kind of hard for me to say. All I know, I was walking along. Before I knew anything,
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it seemed like I double tripped when I was walking.” Counsel for the Airport Authority
again asked her to specify what about the airport made the situation dangerous or caused her
to fall, and she said, “Well, I didn’t think it was anything dangerous about it.”
Mrs. Campbell’s husband testified that he was walking ahead of Mrs. Campbell and
saw her fall “out of the corner of [his] eye” with his peripheral vision. He was asked if he
saw Mrs. Campbell step onto the sidewalk, and he said, “not really,” because “the only thing
[he] noticed was she was falling down,” and he did not pay attention to the surface or the
walkway. As a result, Mr. Campbell did not know whether Mrs. Campbell fell in the
roadway or on the sidewalk. Despite this lack of knowledge, Mr. Campbell expressed his
opinion that Mrs. Campbell “probably never would have fallen” were it not for the incline
at the entrance to the airport. Mr. Campbell said this incline was “basically what I – I would
say was the cause of her to fall. . . [m]ore than anything.” Mr. Campbell described the
incline as the type of ramp or break in the edge of a curb for wheelchair access. Mr.
Campbell said there were large yellow triangles painted on the ground on each side of the
ramp to indicate there was a rise on each side for the curb. He said he had already passed the
incline and reached the level area when Mrs. Campbell fell, so he suggested that “coming to
the incline, I guess that’s where she fell, you know, in that area there.” Again, however, Mr.
Campbell admitted that he did not know whether Mrs. Campbell’s feet were on the ramp
when she fell, or whether she was on the roadway.
Mr. Campbell’s son testified that he was walking ahead of Mr. and Mrs. Campbell,
and when he turned around after hearing a strange noise, Mrs. Campbell “was laid out on the
pavement.” Mr. Campbell’s son said “the only thing [he] could surmise” that could have
caused Mrs. Campbell to fall was the access point where wheelchairs enter the sidewalk.
However, he conceded that he did not actually see her fall, he only saw “the end result.”
Likewise, Mr. Campbell’s granddaughter testified that she was walking ahead of Mrs.
Campbell, heard a noise, turned around, and saw Mrs. Campbell on the ground. The
granddaughter said, “I guess her foot got caught and she fell.” Due to the position in which
Mrs. Campbell was lying, the granddaughter assumed that Mrs. Campbell’s foot “got caught”
on the curb. However, she conceded that her opinion as to the cause of the fall was merely
an assumption because she did not see Mrs. Campbell fall.
In their response to the Airport Authority’s motion for summary judgment, Plaintiffs
failed to mention their original allegations that Mrs. Campbell’s fall was caused by loose
pebbles or concrete and the lack of handrails. Instead, they argued that a factfinder could
infer that the gradual rise in the wheelchair ramp was inadequately marked or dangerous.
As noted above, the trial court granted summary judgment to the Airport Authority,
finding, based upon the undisputed material facts, that neither Mrs. Campbell nor the
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witnesses she identified were able to testify as to what caused her to fall during the subject
incident. The trial court found the opinion in Pittenger v. Ruby Tuesday, Inc., No. M2006-
00266-COA-R3-CV, 2007 WL 935713 (Tenn. Ct. App. Mar. 28, 2007) to be “persuasive and
on point with the facts in this case.” In that case, a restaurant patron attempted to open the
restaurant door for his wife, while holding his daughter, and in the process, he rolled his
ankle. Id. at *1. He sued the restaurant for negligence, apparently claiming that the entrance
to the restaurant was sloping or otherwise defective. Id. at *2. The Court of Appeals
affirmed summary judgment in favor of the restaurant, stating that even if the entrance to the
restaurant was sloping, it was clear from Mr. Pittenger’s deposition that he did not know
what caused the injury to his ankle. Mr. Pittenger had testified during his deposition that he
was “not 100 percent certain of everything that happened,” and he could not remember
“about the steps and stepping and which foot [he] stepped which way,” but he thought that
his foot was close to the edge of a two-inch platform in the doorway, and his ankle rolled
over the edge when he reached to open the door. The Court explained,
Negligence is not to be presumed from the mere happening of an
accident. Brackman v. Adrian, 472 S.W.2d 735, 739 (Tenn. Ct. App. 1971);
Friedenstab v. Short, 174 S.W.3d 217, 219 (Tenn. Ct. App. 2004). Negligence
shall not be presumed absent an affirmative demonstration from the evidence.
Wiedel v. Remmel, 328 N.E.2d 391, 393 (Ohio 1975). Therefore, in the
context of injuries to plaintiffs resulting from a fall, “mere speculation about
the cause of an injury is insufficient to establish liability on a negligence
claim.” Cohen v. Meridia Health Sys., No. 87001, 2006 WL 1935068, at *2
(Ohio Ct. App. Jul. 13, 2006). “As such, a plaintiff will be prevented from
establishing negligence when he, either personally or with the use of outside
witnesses, is unable to identify what caused the fall. In other words, a plaintiff
must know what caused him to slip and fall. A plaintiff cannot speculate as
to what caused the fall.” Beck v. Camden Place at Tuttle Crossing, No.
02AP-1370, 2004 WL 1277044, at *2 (Ohio Ct. App. Jun. 10, 2004) (internal
citations omitted); see also Sparks v. Knoxville Util. Bd., No. 03A01-9803-CV-
00092, 1998 WL 668719, at *1 (Tenn. Ct. App. Sept. 30, 1998) (“In a
premises liability case such as this one, the plaintiff must prove, among other
things, that he or she was injured by a dangerous or defective condition on the
defendant's property[.]”).
In Pittenger, the patron’s assumption that the sloping platform and the weight of the door
caused his ankle to roll was “nothing more than speculation,” as he could not state with
definiteness what caused his injury. Because “we cannot presume negligence absent an
affirmative demonstration from the evidence,” we affirmed summary judgment in favor of
the restaurant. Id. at *4.
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Another similar case is Mullins v. Nash, No. 01A01-9403-CV-00138, 1994 WL
485581 (Tenn. Ct. App. W.S. Sept. 9, 1994), where a woman sued her brother for negligence,
alleging that she tripped and fell over a piece of roofing material that he used as a sidewalk
to his home. Her complaint alleged that her brother should have known of the unsafe
condition of the “sidewalk” and that his failure to properly maintain it and failure to warn her
of the dangerous condition proximately caused her injuries. However, during her deposition,
Ms. Mullins testified that she did not know what caused her fall: “I was just walking to the
house, and down I went.” Id. at *1. She did not see any foreign objects or uneven ground,
and she could not identify anything that her brother did to cause the fall. The walkway was
in the same condition in which it had always been, and Ms. Mullins said she did not consider
the walkway to be dangerous. Id. at *2. The Court of Appeals affirmed summary judgment
in favor of the brother, stating that the record before the Court failed to establish the cause
of the fall and emphasizing that “the mere fact that an injury has been sustained never raises
a presumption of negligence.” Id.
In Wright v. Winn-Dixie, Inc., No. 114, 1990 WL 125079 (Tenn. Ct. App. Aug. 30,
1990) perm. app. denied (Tenn. Nov. 5, 1990), we held that a directed verdict should have
been granted to the defendant grocery store where a customer fell but could not identify the
cause of her fall and merely assumed that the floor must have been slippery due to the fact
that she fell. Basically, the customer “speculated on the cause of her fall, and . . . asked the
jury to do likewise. This [was] not permissible.” Id. at *2. We explained that a proprietor
“has a duty to its customers to exercise ordinary care and diligence to maintain the premises
in a reasonably safe condition,” but this does not mean that the proprietor is an insurer of the
safety of its invitees. Id. (citing Paradiso v. Kroger Company, 499 S.W.2d 78 (Tenn. App.
1973)). “Put another way, negligence is a matter of some fault or departure from the
standard of reasonable care or conduct.” Id. at *3. Because the customer put forth no
evidence of any act or omission on the part of the grocery store that caused the plaintiff to
fall, a directed verdict was proper.
As these cases demonstrate, “People fall all the time but this does not perforce mean
that the fall was due to another’s negligence or something that was in another’s control.”
Anderson v. Wal-Mart Stores East, L.P., No. 2:12–00037, 2013 WL 3010696, at *3 (M.D.
Tenn. June 18, 2013) (granting summary judgment to the defendant store where the plaintiff
repeatedly testified during her deposition that she had no idea what she tripped on).
In the case at bar, the Airport Authority submitted evidence that affirmatively negated
Plaintiffs’ claims that she fell “because of some loose pebbles or concrete,” the lack of
handrails, or the lack of a nonslip surface. As for any other general allegation of negligence,
the Airport Authority pointed to evidence demonstrating that Plaintiffs’ evidence was
“insufficient to establish an essential element of [their] claim,” namely, causation. There was
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no evidence in the record to prove what caused Mrs. Campbell to fall. As she put it, “I don't
know whether I stepped on something or what happened.” She said, “I don’t know what
happened. All I know is I fell. . . . I don’t know whether I tripped.” Mrs. Campbell could
not remember if she fell on the sidewalk or in the roadway. At one point she said she tripped
“as soon as [she] stepped up on the curb” but later she said she stepped up with both feet and
“walked for a little distance” before she fell. She insisted she was “up on the level” surface
and not on the curb. When Mrs. Campbell was specifically asked if she knew what she fell
or tripped on, she said, “No, I don’t. It wasn’t raining that day, so I – had to be something
for me to fall.” However, she went on to say there was nothing dangerous about the
condition of the airport.
Mrs. Campbell’s husband did not know, either, whether Mrs. Campbell fell in the
roadway or on the sidewalk. He suggested that Mrs. Campbell fell because of the wheelchair
incline, but he admitted that he did not know whether Mrs. Campbell’s feet were on the ramp
when she fell or whether she was in the roadway. Likewise, Mr. Campbell’s son and
granddaughter assumed or speculated that Mrs. Campbell may have fallen on the incline or
on the curb, but neither of them saw her fall, so they could not say for sure.
The evidence submitted by the Airport Authority was sufficient to shift the burden of
production to the non-moving party, Plaintiffs. In their response to the Airport Authority’s
motion for summary judgment, Plaintiffs claimed that a factfinder could infer that the gradual
rise in the wheelchair ramp was inadequately marked or dangerous. This assertion was
insufficient to meet Plaintiffs’ burden in response to the Airport Authority’s properly
supported motion. It does not matter if the wheelchair ramp was inadequately marked or
dangerous if Plaintiffs cannot prove that it was the ramp that caused Mrs. Campbell’s injury.
Plaintiffs also argued in response to the motion for summary judgment that, under Hannan
v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008), it is not enough to point to omissions in
a plaintiff’s proof at the summary judgment stage. However, Hannan is not the standard that
applies in this case. For all these reasons, we find that the trial court properly granted
summary judgment to the Airport Authority.
C. Attorney’s fees on Appeal
The Airport Authority contends that Plaintiffs’ appeal was frivolous, and it seeks an
award of appellate attorney’s fees. Tennessee Code Annotated section 27-1-122 provides
for an award of sanctions in the form of attorney's fees when an appeal is determined to be
frivolous. “A frivolous appeal is one that is ‘devoid of merit such that it had no reasonable
chance of succeeding.’” Henderson v. SAIA, Inc., 318 S.W.3d 328, 341 (Tenn. 2010)
(quoting Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 50 n. 4 (Tenn. 2004)). The
statutory authorization for awarding attorney’s fees “reflect[s] the view that successful parties
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should not have to bear the costs and vexation of baseless appeals.” Id. at 342. Still, “care
must be taken by the courts to avoid discouraging legitimate appeals,” so “imposing a penalty
for a frivolous appeal is a remedy which is to be used only in obvious cases of frivolity and
should not be asserted lightly or granted unless clearly applicable—which is rare.” Id.
Plaintiffs’ brief on appeal failed to include citations to the record, its facts section
consisted of two sentences, it attempted to raise an issue that was not presented in the trial
court, and although it cited cases discussing summary judgments generally, it did not cite any
authority relevant to the issue of premises liability. Exercising our discretion, we grant the
Airport Authority’s request for appellate attorney’s fees and remand to the trial court for
determination of a reasonable fee.
V. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court and remand
for further proceedings. Costs of this appeal are taxed to the appellants, Willie Campbell and
Ulysses Campbell, Sr., and their surety, for which execution may issue if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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